In a significant ruling with far-reaching implications, the Madurai bench of the Madras High Court has reinforced India’s commitment to secularism, emphasising the need for equal treatment of all religions by the State. Justice GR Swaminathan underscored this principle in a recent decision, calling for the inclusion of church properties within the scope of Section 22-A of the Registration Act, 1908.
Section 22-A of the Registration Act pertains to the refusal to register certain documents, providing legal protection to properties managed under Hindu and Islamic laws. However, Justice Swaminathan pointed out a notable omission: properties owned by churches do not currently receive the same protection.
Justice Swaminathan observed, “When the Registration Act contains a provision to protect the properties endowed under Hindu and Islamic laws, it is surprising that the church properties are not covered. The logical reason that one can give is that in the case of Hindu religious endowments and Waqf properties, there are specific laws. In the case of church properties, a similar law appears to be absent.”
Highlighting India’s secular framework, the court noted that it is imperative for the state to approach all religions equally. “India is a secular country. It means that the state should approach all religions alike. Probably the time has come to include the church properties also within the scope of Section 22-A of the Act,” Justice Swaminathan stated.
In its 9 pages order, Justice Swaminathan said “Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarified Mandamus, to call for the records relating to the impugned proceeding issued by the 2nd respondent SubRegistrar in refusal Number.RFL/Tiruppathur-Karaikudi/23/2023 dated 29.03.2023, quash the same and further direct the 2nd respondent herein to forthwith register the sale deed presented by the petitioner of the property to an extent of 1345 Square feet situated in GR Survey No.280/3G (earlier GR Survey No.280/3, 280), new Ward No.6, SMH Campus, Tiruppathur Town, Sivagangai Town”.
According to petitioner, Shalin , he had purchased the petition-mentioned property from one Vijaya. It was presented for registration before the respondent Sub Registrar. He refused registration and issued the impugned refusal check slip. Challenging the same, the present writ petition came to be filed”.
The judge noted that the circular was not a statutory direction issued by the IG of Registration. It is a mere communication by the District Registrar (Guideline) intimating all the Sub Registrars, District Registrars and the Deputy Inspector Generals of Registration about the interim order passed by the High Court. The court said “It is well settled that an interim order cannot have life beyond the termination of the main writ petition”
The court said “There are two aspects. One is the right to register a transaction. The other is the power to refuse registration. The provisions pertaining to the power to refuse registration must be strictly construed. Their scope and ambit should be confined to what the restrictive provisions specifically envisage and contemplate. Section 22-A and Section 22-B which were inserted by TN Act 28 of 2012 and TN Act 41 of 2022, respectively cannot be liberally or expansively interpreted. It is seen that in Section 22-A, only immovable properties belonging to, or given or endowed for the purpose of, any religious institution to which the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, applies and Waqf properties under the supervision of the Waqf Board are covered. Church properties have not been granted similar protection. I have personally come across quite a few cases wherein church properties have been illegally and unlawfully alienated. There is a popular saying in Tamil …. ( if you rob or by illegal means, own owns properties of Bhagwan Shiva, your entire generation would be doomed) The belief is that misappropriating temple property will destroy the family of the person committing the act. When the Registration Act contains a provision to protect the properties endowed under Hindu and Islamic Laws, it is surprising that the church properties are not covered. The logical reason that one can give is that in the case of Hindu religious endowments and Wakf properties, there are specific laws; in the case of church properties; a similar law appears to be absent. India is a secular country. It means that the State should approach all the religions alike. Probably the time has come to include the church properties also within the scope of Section 22-A of the Act. This is a call that the future should take. As on date, Section 22-A is not applicable to transactions involving church properties. Looked at from any angle, I do not find any justification for the second respondent declining to register the document in question”.
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The court said, “ In these circumstances, the impugned order has to be set aside. It is accordingly set aside. The petitioner is permitted to re-present the document before the second respondent. The second respondent shall entertain the same and register it and release it. The petitioner, of- course, has to pay the requisite stamp duty and registration charges.”.
The judge clarified that the 2017 ruling was an interim order and emphasised that such orders do not extend beyond the conclusion of the main writ petition.
Reacting to this order, Thuglak editor S Gurumurthy said “ this is real secularism. For 74 years courts have have been endorsing the fake secularism of pseudo seculars.”
